Lorelyn Miller was born in the Philippines, in 1970, to a Filipino national woman and an American soldier. Her parents were never married. In 1992, after the State Department rejected her first application for U.S. citizenship, Miller reapplied when a Texas court granted her father's petition for a paternity decree declaring him her father. When the State Department rejected her citizenship application again, claiming that 8 U.S.C. Section 1409(a) required foreign born illegitimate children of American fathers to be legitimated before age 18, Miller challenged the refusal. She claimed that since Section 1409(c) established at birth the citizenship of an illegitimate foreign-born child whose mother was an American citizen, the State Department's refusal to do the same under Section 1409(a), when the father is an American citizen, was unconstitutional. On appeal from an appellate court's decision to affirm the lower court's dismissal of the case, the Supreme Court granted Miller certiorari.

Question

Does 8 U.S.C. Section 1409, establishing upon birth the U.S. citizenship of illegitimate foreign-born children whose mothers only are U.S. citizens but failing to do the same if only their fathers are U.S. citizens, violate the Fifth Amendment's equal protection guarantees?

No. After ruling that Miller had standing to challenge the constitutionality of a federal statute, the Court held that 8 U.S.C. Section 1409 did not violate the Equal Protection Clause. The Court reasoned that different treatment of mothers and fathers of out-of-wedlock children was justified since the two parents are not "similarly situated." While the child's relationship with its father may be undisclosed for several years, its blood relationship to its mother is usually apparent through hospital records. Moreover, whereas birth mothers will know immediately of their child's existence, birth fathers and their children may never know each other. The statutory requirement that a child born out of wedlock to a citizen father obtain formal proof of paternity by age 18, either through legitimization, written acknowledgment by the father under oath, or adjudication by a competent court, is well tailored to address the difficulties of establishing a child's citizenship based only on the relation to the father.

The Court granted certiorari in this case on one issue only, whether the gender discrimination provisions in 8 U.S.C. section 1409 violate the Constitution.

The court of appeals felt that this Court's opinion in Fiallo v. Bell was a controlling precedent.

It is our position that Fiallo can be distinguished, but that if the Court feels that it applies, that Fiallo is out of step with the Court's more recent decisions that refuse to sanction official actions that close a door to opportunity based on overbroad generalizations concerning the abilities, or personalities or such, of males and females.

The Immigration & Nationality Act draws some clear distinctions between the naturalization of an individual about whom alienage is not in dispute and those persons who are citizens at birth.

Naturalization is the conferring of nationality of a State upon an individual subsequent to their birth.

Persons who are born overseas to a U.S. citizen are citizens and nationals of the United States at birth.

Unknown Speaker: Am I right, Mr. Patterson, in thinking that your client has never set foot in the United States?

Mr. Patterson: My client has set foot in the United States, in fact is presently in the United States, but not at the time that this case was filed and originally came forth, Your Honor.

Unknown Speaker: Thank you.

Mr. Patterson: Unlike the person who is seeking naturalization or immigration, Ms. Miller seeks to establish her citizenship by virtue of her birth.

The deference accorded the Congress power over admissions of aliens is inapplicable in dealing with a situation where someone claims citizenship from birth, and we feel there is a clear distinction here, that she has been denied her equal protection rights, and she seeks a finding that she is a citizen at birth, and thus Fiallo can be distinguished.

Unknown Speaker: But how do you say Fiallo is distinguishable in that regard?

Mr. Patterson: Fiallo dealt with a situation where there was no question concerning the alienage of the persons involved.

In this case, we claim that my client should have been entitled to citizenship at birth, and therefore it is not an immigration matter but a citizenship matter, and could be distinguished on that basis.

Fiallo could be left to apply in cases in which they were purely immigration.

This case is not so much based on the immigration powers of Congress as it is upon the gender discrimination that is established in this provision.

Unknown Speaker: But you have to have a part of a law of Congress declared unconstitutional in order to establish your client's citizenship, do you not?

Mr. Patterson: That is correct, Your Honor.

We feel that--

Unknown Speaker: You say there's no deference to Congress in this respect?

Mr. Patterson: --Your Honor, while the Court gives deference to Congress in many areas, the Court has held that it does not... deference does not mean abdication, and that if a statute is violative of the provisions of the Constitution, then that statute cannot stand.

Unknown Speaker: Yes, but I think some of... there's language in some of our cases that say in the field of immigration and nationality we give extraordinary deference to what Congress has decided.

Now, you're saying, I guess, that when you're talking about nationality as opposed to immigration the Congress gets no special deference.

Mr. Patterson: I think Congress always gets a certain amount of deference, Your Honor, in any case, because I think the Court normally approaches that they are... Congress is entitled to do what is within its realm, but if it violates... if it provides a provision that deprives people of the equal protection of the Constitution, then that statute cannot stand, and dealing with--

Unknown Speaker: May I just interrupt with a question?

I'm not sure I understood.

Are you saying there is a constitutional entitlement to citizenship at birth?

Mr. Patterson: --There is not a constitutional entitlement of citizenship at birth unless you are born in the United States.

Unknown Speaker: Okay.

Mr. Patterson: However, the Congress has created a statute which provides that children of U.S. citizen parents are entitled to citizenship at birth, but then they have in effect taken away that right as to those children who are illegitimate in that section 1401 establishes a broad general statement that all children born to U.S. citizen parents in the world are U.S. citizens at birth.

Then in 14--

Unknown Speaker: Well, let me just interrupt with a simple question to be sure.

Would it be constitutional for Congress to pass a statute saying that any child born abroad of American parents shall become a citizen at the age of 10, regardless of who the... which parent was the... the male or female parent?

Mr. Patterson: --I think it would be.

Unknown Speaker: Okay.

Mr. Patterson: The Congress has tremendous powers.

Congress probably could decide--

Unknown Speaker: Okay.

Mr. Patterson: --that no one born outside of the United States was a citizen.

Unknown Speaker: All right.

Mr. Patterson, on that line, you don't take issue with Judge Wald's statement, do you, that I see no problem with the requirement that a U.S. citizen parent take some action to acknowledge parentage or responsibility for a child before the child reaches age 18?

If... suppose Congress said, mothers, fathers, they're both parents, and if a child is born abroad, one of them has to say, I will take responsibility for this child till she's 18.

Mr. Patterson: I would have no problem with that, Your Honor.

However, that's not what Congress has done.

Congress on the one hand has established a situation where the mother has to do nothing except be the mother, and her children become a U.S. citizen.

But then it has placed very strict requirements on a father for his children to become a U.S. citizen.

Unknown Speaker: Well--

--It's interesting, is it not, that from 1790 till 1934, there was, as I understand the statutes, no way that a mother could fit under them.

It all depended on fatherhood.

Mr. Patterson: That is my understanding, Your Honor, and as to children born prior to 1934, it's only been recently that Congress has gone back to correct that situation.

Unknown Speaker: So that was unconstitutional, from--

Mr. Patterson: Sir?

Unknown Speaker: --And that was unconstitutional, from 1796 to whatever?

Mr. Patterson: I feel that under the present interpretations of the Constitution, that it would be found to be unconstitutional.

Unknown Speaker: We're talking about 1790 to 1934, and under the precedent that then existed--

Mr. Patterson: Under the precedent that then existed, I would assume that it was not unconstitutional, but I feel that under the precedents that exist now, it would be considered unconstitutional.

Unknown Speaker: --I see.

But you're still talking about the same Constitution.

Mr. Patterson: Yes, Your Honor.

[Laughter]

Unknown Speaker: Mr. Patterson, you mentioned a moment ago that the way you view the relationship between 1401 and 1409 is that 1401 first provides citizenship on individuals like your client, and then 1409 in effect takes it away, but that does not seem to me a fair characterization of the statute, because 1409, in its subsection (a) seems to me to make it pretty clear that 1401 simply does not apply to individuals like your client in cases of illegitimacy unless certain conditions are satisfied, so I don't see how you can start your argument by assuming that 1401 gives you something which is then taken away on a disparate criterion.

Mr. Patterson: Well, Your Honor, we feel that 1409 as it exists now is an unconstitutional discrimination based on gender, and--

I thought you... the question was, you know, how do you get into court in the first place, and you say, well... or I guess the question was on deference, and you say, well, the deference issue is different here because my client in effect is given citizenship to begin with, so that she starts as a citizen claimant in a way that the other plaintiff did not.

But it seems to me that if your reason for that is the provision of 1401, your argument fails, because 1409 says 1401 doesn't apply unless you meet these conditions.

Mr. Patterson: --Your Honor, basically, though, 1409 we view as being a gender discrimination issue, and that in this situation, that if it did not apply my client would be, under the general terms of 1401, a citizen, and we feel that there is a distinction between a situation where someone is purely an alien, no question about it all, of their alienage, and a situation where there is a relationship, a tie to the United States through a citizen parent, and that the rules as to the citizen parent should be the same whether the parent is a woman or a man.

Unknown Speaker: Let me interrupt you there, because is it not the fact that most of the cases we're concerned with probably are illegitimate children of service people abroad, and isn't it also a fact that the vast... maybe not the vast majority, but the preponderant number of those would probably be of a male parent rather than a female parent?

Mr. Patterson: Well, Your Honor--

Unknown Speaker: And isn't it also true that at the time of birth, when it's a female parent there's no question about what's going to happen to that child, whereas at the time of birth of a child of a male parent by a female alien, when the male parent may not be on the spot at all, or even within the general area, there are a lot of questions that have to be resolved in the future?

Mr. Patterson: --All right.

There are some questions, Your Honor, but my understanding is that statistically there are more female U.S. citizens abroad than male U.S. citizens.

I do know that within the Armed Forces that now the percentage is somewhere like 13 or 14 percent of all the Armed Forces are now female.

Unknown Speaker: Right.

Mr. Patterson: So while we may have had a problem with one situation in the past, I think the situation is... has the potential to change.

Unknown Speaker: Well, but 13 percent is quite different from 87 percent.

Mr. Patterson: Right.

That is correct, Your Honor, but I think that also the question or the issue we have here is that the requirements are placed on the male to do something.

All that the woman has to do is be the parent.

Unknown Speaker: That's right, and... which is established at the moment of birth, no matter where the birth takes place, if there's any hospital record to establish--

Mr. Patterson: Right.

If there's any hospital record--

Unknown Speaker: --With regard to the male parent, there are a lot of questions that are unanswered at the time of birth.

Mr. Patterson: --But there... the answers as to the male parent can be established with modern technology.

The--

Unknown Speaker: They cannot be established as promptly in the routine case as they can with regard to the woman, if you're talking about situations abroad where personnel are transferred from location to location within 6-month periods.

Mr. Patterson: --That is true, Your Honor.

However--

Unknown Speaker: Servicemen being overseas and shipped back to this country.

Mr. Patterson: --Right.

There are potential problems, but the problems can be dealt with.

We feel that the only requirement should be that there be proof submitted that this is the child of a U.S. citizen.

Now, what that proof may be, because there's--

Unknown Speaker: Would you say that it would be fair to say the proof must be submitted within 36 hours after birth, and if you treat both sexes equally, the only requirement is that parentage must be established within the first 2 weeks after birth?

I think--

Mr. Patterson: --I think--

Unknown Speaker: --you'd have many, many children of male, unmarried parents who would not be able to comply with that requirement.

Mr. Patterson: --That is correct, Your Honor, and I feel that while there have been some other areas where this Court has determined that it is not necessary to have an immediate determination of the parentage of a child for the child to ultimately be able to proceed in terms of inheritance and this sort of thing, in a sense this is an inheritance.

This is an inheritance of a citizenship, and we would like to see the tables leveled as to both the male and female as to what takes place.

Unknown Speaker: But only in one way, only in one direction.

Let me ask you this.

Does your client have standing to assert the father's gender discrimination claim?

Mr. Patterson: Your Honor, we feel that she--

Unknown Speaker: I hadn't thought so.

He was in the case at one point.

Mr. Patterson: --Right, Your Honor, and the Government in a motion said that the rights and benefits of U.S. citizenship he already enjoys simply have not been injured by the denial of Lorelyn Penero Miller's application.

The rights, if any, which have been injured are those of Lorelyn Penero Miller, the true plaintiff in this action.

And so while he was in the case the Government--

Unknown Speaker: Well, the short answer is, the father is no longer before us, is that right?

Mr. Patterson: --That is correct, Your Honor.

Unknown Speaker: And does this petitioner, can she... does she have standing to raise any claims that he might raise on gender discrimination?

Mr. Patterson: We feel that under the criteria that the Court has set out for third party plaintiffs to proceed are based on third party claims, that there has to be an injury, which there is, there has to be a relationship, which there is.

The only issue that the Government has raised in its brief is the issue of a hindrance, and we would say that there is a hindrance created by the Government in their motion to remove him from the case, that they took him out--

Unknown Speaker: When the Government moved to dismiss the father and then coupled that with a motion to transfer the case from Texas to the District of Columbia, I assume that if the Government thought that there was no... well, what did the Government tell the district court in Texas about why the father had no standing?

Mr. Patterson: --Basically their argument in their motion, Your Honor, was as I said, that he had not made application for U.S. citizenship; he was not denied any rights; he had his citizenship; that the denial--

Unknown Speaker: Then the case got shipped to the district court in D.C.--

Mr. Patterson: --That is correct.

Unknown Speaker: --Was there an effort made by the father to appeal his dismissal from the case?

Mr. Patterson: No, Your Honor, there was not an attempt to appeal.

Unknown Speaker: Would there have been a... the problem of the transfer intervening, where would the father have brought that appeal?

Once the case is shipped out of the district court in Texas, they lose... that circuit loses authority over it.

Mr. Patterson: I am not certain, Your Honor, and I would think that that was... one of the factors that entered into us not appealing was the fact that it was moved to another circuit, that the principal issues were still before the court in the District, and we felt that we could go forward and proceed there, that--

Unknown Speaker: I'd like you to clarify one earlier point, because there were references to many, many qualifications, but I think... am I right about this... that you were relying at least alternately on the prior version of 1409, when there was no requirement of a written acknowledgement of support, when all that was required was an acknowledgement, a legitimation of the child by the father saying yes, I am the father.

There was not this additional requirement, as there is now, about a written undertaking to support.

Mr. Patterson: --That is correct, Your Honor.

Unknown Speaker: So we don't have before us the question of the residency requirement, because he satisfies that, so that's an academic question.

Mr. Patterson: Right.

Unknown Speaker: We don't have before us the written support obligation, because that wasn't required at the relevant time.

Mr. Patterson: That is correct.

Unknown Speaker: So it's only one--

Mr. Patterson: The only issue is the issue of the legitimation and my client, though subsequent to the age of 21, or that was required under the prior statute, went into court in Texas, filed a voluntary paternity... or her father, my client's father went into court in Texas, filed a voluntary paternity action, and was determined by the courts of Texas that he is the father of Ms. Miller, and ultimately, so far as Texas is concerned, legally his child and his heir.

Unknown Speaker: --I have one--

--You're relying here on the Fourteenth Amendment, which... you have the equal protection provision, which was surely directed most immediately not to sex discrimination but most immediately to race discrimination.

Now, Congress, however, under its immigration policies, can certainly discriminate on the basis of race, can't it, all the time?

I mean, it says, you know, you can immigrate if you're coming from Ireland, but not if you're coming from Italy or Greece, or whatever.

It's done this from the beginning.

That's national origin, which--

--Well, okay.

--is what the immigration act is all about.

Just a minute.

Let him answer Justice Scalia's question.

I'm sorry.

Consider it race, consider it national origin, whatever you want.

The two are--

Mr. Patterson: Well--

Unknown Speaker: --The two are closely allied, and--

Mr. Patterson: --Your Honor--

Unknown Speaker: --much closer to the Fourteenth Amendment than sex.

Now, how can it be that Congress can do that?

Could Congress say that the children of American fathers who are born in, let's say, Somalia can immigrate to the United States and be United States citizens, but those children of American fathers born in Ireland cannot?

Could Congress say that?

Mr. Patterson: --I am... my reaction is that whether Congress could do it or not, it would be wrong.

Mr. Patterson: --But basically, Your Honor, I think that the issue here has to do with the cases, and... such as Mississippi University for Women, et cetera, where they have said that distinctions based on gender have to--

Unknown Speaker: --Mr. Patterson, may I just vary my colleague's question and say, suppose Congress said that the children of citizen fathers... citizen fathers who are Caucasian are citizens at birth, but that children of citizen fathers who are not Caucasian, people born in the United States, fathers born in the United States but not Caucasian, the children of those fathers born abroad shall not be considered citizens at birth?

Mr. Patterson: --I think, Your Honor, that if we take the Government's argument, accept it in toto, Congress could do that.

They have argued there's a... there are good reasons for the distinction in this case, and your suggestion is there's no justification for differentiation on the basis of the sex of the parent in... when there's an illegitimate birth.

That's really the question we have.

Mr. Patterson: --Your Honor, we feel that there is a matter of discrimination here based on gender, and we feel that if you take it to the logical extreme that the Government espouses, that the Court should defer to Congress' decisions in anything having to do with immigration, citizenship, et cetera.

If you take it to that... to the extreme, then the suggestion by the Justice would be permissible.

Unknown Speaker: But you surely don't have to take it to that extreme to try and figure out whether there is some sensible basis for drawing a distinction between a single parent abroad in the military... I think of the military because I know there are many, many cases that arise this way, when it's the mother on the one hand and when it's the father on the other.

It seems to me there are quite obvious differences, and I... at least justifying some differential in treatment.

Mr. Patterson: Well, I think that, Your Honor, basically the issue is one of who is entitled to citizenship at birth, and Congress has decided that as a general rule, anybody born to a U.S. citizen parent is entitled to be a citizen at birth.

Unknown Speaker: Any legitimate person.

Mr. Patterson: I didn't hear the question.

Unknown Speaker: I say, Congress has decided that any person born legitimately is so entitled.

That's as far as Congress has gone.

Mr. Patterson: Well, they then have decided that any person who is born illegitimately to a mother who is a U.S. citizen is a citizen at birth.

The only distinction that is--

Unknown Speaker: Well, if the mother has lived in the country for a year.

Let me go to that point, because I wanted to ask you this question anyway.

Two of the Government's justifications for drawing the distinction that it draws are these.

One, there are differences in problems of proof, and your answer to that is, well, in this day of genetic testing, those problems really have evaporated, and I'll assume that for the moment.

The second major justification that the Government brings up is that there is a difference, depending on whether the single citizen parent is male or female, depending... which affects the likelihood of the attachment of the child to the country.

The Government says, look, most children stay with their mothers when they're young, just as a matter of fact.

That's the way it happens.

If, in fact, the mother is a citizen, then the child is likely to be in the company of an American citizen, and I suppose most American citizens tend to, sooner or later, come back to the United States, even if they were abroad at some point.

So the Government's argument is, the likelihood is that the child who is born to the female citizen will in fact, because of the mother's company and because of the mother's probable residence, gain an attachment to the United States, whereas that will not necessarily be so if in fact the mother is an alien and it's the father who in Justice Stevens' example comes back from the service assignment at some point.

Is there something unsound factually about the Government's argument, and is there something illegitimate, constitutionally, to the Government's argument?

Mr. Patterson: --All right.

Your Honor, on the one hand they talk about attachment, but there's nothing in the statute that requires any showing of attachment or the mother do anything, other than have the child.

If the mother had the child and abandoned it immediately, the child would still be eligible for citizenship regardless of whether--

Unknown Speaker: But the point is that as a generalization, the attachment will exist in the one case, and as a generalization it will not exist in the other.

Now, what's your response to that, that this is a--

Mr. Patterson: --I believe--

Unknown Speaker: --an unconstitutional stereotyping, or what?

Is it true or false?

Mr. Patterson: --I think, Your Honor, in other contexts the Court has said that you deal with individuals, not with generalizations, and while this may be true as a generalization, it is not true in all circumstances.

Unknown Speaker: Every law is based on a generalization.

You really want us to adopt the proposition that Congress cannot generalize when it makes laws?

Mr. Patterson: Obviously, Congress can to some extent, but where they discriminate against a group based on generalizations that are based on stereotypic, archaic ideas, then--

Unknown Speaker: It may not be archaic.

The... I think the classifications this Court was confronted with in the Frontiero case, in the Wiesenfeld... those weren't archaic.

They did represent the way the world was for most people.

Most men supported most women, and yet the Court did say that in this category sex discrimination, you could not rely on those generally true propositions.

Mr. Patterson: --I would agree with Your Honor on that.

Unknown Speaker: I did want to ask one question about this statute that does draw a distinction that's different for men and women.

That is, the very first requirement, that blood relationship between the child and the father be established by clear and convincing evidence.

Are you challenging the constitutionality of such a requirement?

Mr. Patterson: I think, Your Honor, that for anyone there would have to be some clear and convincing evidence that they were the parent, be it the mother or the father.

Unknown Speaker: But suppose the statute, all it said was that.

That was the only distinction that was drawn on the basis of sex.

It says, in the case of the father, the blood relationship must be established by clear and convincing evidence.

Mr. Patterson: I don't believe I would have any problem with that, Your Honor, because I feel that to me would be a prerequisite regardless, though it is not spelled out that there has to be clear and convincing evidence that the mother was the mother of the child for the child to be able to claim U.S. citizenship.

Unknown Speaker: I have one question, which is a very preliminary nature.

I take it as a general rule that if you're a person outside the United States you do not have capacity to sue for a violation of the Constitution, and this is... you say this is different because the claim at issue is citizenship?

Mr. Patterson: I feel that that is a distinction that could be drawn.

However, I think--

Unknown Speaker: I was just curious to know, do you have some precedent for that?

Mr. Patterson: --I have some precedents, and I was trying to find it, that the Constitution is not limited to the boundaries of the United States.

Unknown Speaker: But Rogers v. Belli, the Court said that foreign-born children of citizens have no constitutional right to citizenship.

We'd have to disavow that, wouldn't we?

It's limited at least to the soil of the United States and the blood of the United States.

I mean, you're either applying jurisdiction on the basis of territory or on the basis of blood, and--

--Let me put it--

--your client here is neither on the territory of the United States nor a United States citizen, so that you could say her actions are governed abroad by United States law.

Mr. Patterson: Your Honor, in United States, and I'm not sure of the exact pronunciation, V-e-r-d-u-g-o... U-r-i-q-u-i-d-e-z, at 494, 259, 278, in a concurring opinion, Judge Kennedy indicated that the Government may only act as the Constitution authorizes whether the actions in question are foreign or domestic.

Unknown Speaker: Yes, but you see, there there was a citizen... there was a person who was being tried in a United States criminal court, but here your client has never been in the United... for... just for our purposes, at this time the suit was filed was outside the United States.

Well, perhaps the Government will address that briefly.

I would like you to, because I thought Rogers supported you.

That is, I thought Rogers was a case where a person claimed citizenship.

He was wrong on the merits, but the Court permitted him to raise the claim.

Mr. Patterson: I think--

Unknown Speaker: Because had he won, he would have been a citizen.

Mr. Patterson: --Right.

Unknown Speaker: And there... so is... but don't say yes if I'm not right, because... because it won't do any good.

[Laughter]

Mr. Patterson: Well, I believe that is my recollection, but I... it's been a while since I have read that, but I do know that it raised the issue, and--

Unknown Speaker: So Rogers is the precedent, you say?

Mr. Patterson: --I believe so.

I'd have to check to be sure, Your Honor.

Unknown Speaker: And you're still relying on the third party standing that you cited Craig v. Boren, that if the beer seller could raise the boy's equal protection rights, then the daughter can raise her father's rights.

Mr. Patterson: Yes, Your Honor.

Mr. Chief Justice, may I reserve the rest of my time, if there are no further questions?

Unknown Speaker: You have no time left.

Mr. Kneedler, we'll hear from you.

Argument of Edwin S. Kneedler

Mr. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:

The Naturalization Clause of the Constitution commits to Congress the power that is inherent in any sovereign nation to determine which aliens abroad will be granted United States citizenship.

As this Court said in the Ginsberg decision, no alien has the slightest right to naturalization unless all statutory conditions are satisfied, any by the same token, the Court has said in the Rogers v. Belli decision that was just cited, no United States citizen has a right to transmit citizenship by dissent.

Now, to be sure, where the interests of the United States citizen are properly before the Court, and in this case we suggest that they're not, but where they are, such as in Fiallo or Kleindienst v. Mandel, this Court has declined to hold that Congress' judgments in this area are wholly beyond judicial review.

Unknown Speaker: Mr.--

--Mr. Kneedler, why did the Government move to dismiss the father when he was in this case?

Mr. Kneedler: The motion to dismiss in Texas, there were really two grounds.

One was essentially, while couched as a standing ground was essentially a merits argument, and that is that his argument of gender-based discrimination was foreclosed by Fiallo v. Bell.

The Government also argued essentially that because the claim to citizenship was that of the petitioner here and not his own, that he effectively had no ability to insist that the Government confer citizenship on her.

That is more in the nature of a standing argument.

Now, again, in Fiallo, where the... there were rights of... both citizen plaintiffs and alien plaintiffs were before the Court, and the Court then, because of that presence, addressed the constitutional question because of the presence of the alien parent, even though the... I mean, the citizen parent, even though the citizen parent couldn't have required in a sense to have--

Unknown Speaker: If Fiallo was controlling, it should have been controlling on her claim as well as his, so it's a little odd that the Government moved only to dismiss him.

Mr. Kneedler: --The... it is--

Unknown Speaker: And not her.

Mr. Kneedler: --Well, it did... it moved to dismiss her also on a ground that she could not claim his equal protection rights.

Unknown Speaker: And third party standing.

Mr. Kneedler: Right.

Right.

Unknown Speaker: But the Government... if the Government's position was Fiallo v. Bell, then it's very difficult to understand why it didn't... they didn't do that across the board.

They chose to do it only with respect to the father and with respect to her said she has no third party standing.

Mr. Kneedler: Well, the Government certainly did argue that Fiallo was controlling across the board, but I think our... the point here is that whatever the label attached to it, the father was dismissed from the case, essentially rejecting his claim under Fiallo, and he did not appeal either from the Texas ruling at the time or from the final judgment at the time it was rendered in--

Unknown Speaker: But it is sort of ironic.

The Government argued he didn't have standing, it was her claim, and here you're arguing that she doesn't have standing, it's his claim.

Mr. Kneedler: --Right.

Unknown Speaker: That's a little hard to swallow.

Mr. Kneedler: I acknowledge that the standing argument in Texas may not have been properly couched as a standing argument.

The fact remains, though, that that is a past ruling in the case.

Unknown Speaker: May I ask just that you refer to the Texas proceeding?

What evidence was taken on the issue of parentage?

Was it just his testimony?

Mr. Kneedler: You mean in the Texas State court proceeding?

Unknown Speaker: How was his... how do we know he's the real father?

Mr. Kneedler: Well, the record in this case does not disclose what was before the Texas court at the time.

It's not clear that it consisted of much more than his statement that he is the father, but of course, under the immigration statute, and the naturalization statute we have at issue here, that's all that would have been required as well to establish paternity, given... in light of the 1986 amendments.

Prior to that time, he would have needed a formal legitimation such as the court decree here, but under the 1986 amendments all that was required was an acknowledgement before the State Department of his paternity.

Unknown Speaker: Mr. Kneedler--

--He had much more, though.

He is the... he has become a legitimate father, has he not?

Mr. Kneedler: As a matter of State law, yes.

My only point is that we have not acknowledged in this case that he has satisfied all the requirements as a matter of Federal law.

If the legitimation decree was... had been entered before she was a teen, or before she was 21 under the prior version of this statute, that official determination would have been controlling, but if that decree is simply relied on as evidence of blood relationship, then we do not think it is controlling on the State Department.

The State Department was not a party to that case, so insofar as she is applying on the basis of events that happened before age 21, or before age 18, we think she would have to carry that burden of proof before the State Department.

The State Department did not reach that question, as you pointed out in this case.

The basis for the State Department's rejection for a claim in this case was really the failure to establish the formal parent-child relationship prior to the age 18 or, under the prior statute, age 21, so really the issue before this Court and before the district court was whether Congress can properly impose a limitation of that sort on the time in which the father of a child born out of wedlock can take steps to legitimate the child.

Unknown Speaker: But then we take--

--Just before we get to--

--Yes.

I'm sorry.

Just one more moment on the standing and the transfer.

How would the father, or where would the father have appealed that dismissal?

The case had been transferred to the district court in the District of Columbia.

There was the father, left at the post back in Texas.

Where would he... where would that... his appeal go?

Mr. Kneedler: I think he probably could have done either of two things.

One would be to ask for a Rule 54(b) certification in Texas and taken immediate appeal then, perhaps, or, with the case transferred, once the final judgment was entered here, I assume that the father could have... that Mr. Miller could have appealed from the final judgment at that time.

Unknown Speaker: In the District of Columbia?

Mr. Kneedler: Yes, I think so.

I'm--

Unknown Speaker: Because my understanding was that once the case gets transferred, the transferor court loses authority over it.

Mr. Kneedler: --Right.

Yes.

No, I meant if a 54(b) certification or an interlocutory appeal request had been filed before the case was actually transferred, but... and he presumably could have requested the district court in Texas to say, before you actually transfer the case... I know that's what the Government has asked for, but before you actually do that, afford me the opportunity to take an interlocutory appeal, or appeal of the final judgment insofar as the case would... the decision would finally dispose of my claim.

But he didn't do that.

The case was transferred to the District of Columbia, and I don't think he would have been foreclosed from--

Unknown Speaker: You ordinarily would get 60 days if the Government's on the other side.

How much time did he have between when the case was ordered transferred and when it left Texas and went to the District of Columbia?

Mr. Kneedler: --I'm not sure of that timing.

I think that once there is the order of transfer, I think it would be entry of the order of transfer that would transfer it to the District of Columbia, but again, I don't believe that would have terminated his right to take an appeal, because--

Unknown Speaker: But it would have shortened what is the usual time one has.

Mr. Kneedler: --In Texas.

My point is that I think he was a party to this case when it was filed.

There was no final judgment.

Once the case got to the District of Columbia, I don't know a reason why he couldn't have appealed from the final judgment here.

The case was transferred along, I assume with all interlocutory orders that led up to that, and one of those orders was the dismissal of him as a party, so I think once the final judgment was entered here... this has not been an issue in the case, but that has been my sense.

Unknown Speaker: I don't want to delay you any longer in getting to the merits, subject to one question.

Rogers v. Belli, is that the precedent that we look to to see that this petitioner has standing to invoke the assistance of the Federal courts when she's... and of the Constitution when she is outside the jurisdiction?

Mr. Kneedler: No, I think it's not.

In Rogers, there was a situation where there was a conferral of citizenship subject to a subsequent loss of divestiture, on failure to satisfy conditions subsequent, so at that point we think that the person had her foot in the door, or his foot in the door towards citizenship, in fact was granted citizenship, and it was about to be taken away.

And this situation is very different.

The question is whether the petitioner is entitled to citizenship in the first instance and, as this Court pointed out many years ago in the Wong Kim Ark decision, the conferral of citizenship on anyone who is not born within the United States is an act of naturalization.

Whether that's done at the time of birth or whether it's done by procedures in the United States later, or whether it's done by categories in conquered territory or whatever, that is all an exercise of Congress' naturalization power.

Unknown Speaker: And she says she's a citizen by virtue of 1401, and you say well, that can't be until you knock out 1409, and you can't do that because--

Mr. Kneedler: No, we don't believe she could... that 1401 would grant citizenship at all, because 1409--

Unknown Speaker: --Well, I mean, that's her position.

Mr. Kneedler: --That's her position, but we think that's an incorrect interpretation of the statute.

1409 is the only subject... section of the act that deals with the subject of children born out of wedlock, and Congress... it was a very difficult subject for Congress to address in the Nationality Act of 1940 and ever since then, and there was considerable debate leading up to the passage of the 1940 act about how to deal with a situation of one citizen parent, one foreign parent, and in particular, how to deal with the problem posed where you had a child born out of wedlock where you have a U.S. citizen parent and an alien parent.

Unknown Speaker: Mr. Kneedler, do you... when this case began, at least, the petitioner here was outside the jurisdiction of the United States.

Do you take the position that she was a person within the meaning of the Fifth Amendment for bringing the equal protection kind of claim that she brings at that time?

Mr. Kneedler: No.

Our bottom line is that the Due Process Clause does not apply to her.

Whether that comes from interpreting the word person or whether it is just a broader consideration of the territorial scope of the Fifth Amendment, I'm not sure much turns on that, but in this Court's decision in Johnson v. Eisentrager, which was reiterated in the Verdugo decision, the Court said that aliens outside the United States have no rights under the Fifth Amendment.

Whether she has since come to the United States is irrelevant for these purposes, because--

Unknown Speaker: Didn't Johnson v. Eisentrager make a distinction between one who was an alien and, I think the words of the decision were, if a person makes a claim to U.S. citizenship, and distinguish the person who said, I'm an alien and would like the opportunity to become a U.S. citizen, and someone who was making a claim to U.S. citizenship.

Mr. Kneedler: --I believe that was with respect to access to courts, where another aspect of Johnson v. Eisentrager was whether habeas corpus jurisdiction would lie.

We're not suggesting that she has no right of access to the U.S. courts to make her claim.

All we're saying is that her claim fails on the merits because both, we think as an attribute of the sovereignty of the United States, someone outside the United States who is not a citizen has no constitutional right to claim it, but also because the Fifth Amendment, which is the clause of the Constitution on which she specifically relies, that that does not apply outside the United States.

Unknown Speaker: Mr. Kneedler, can I--

--Is there anything... I take it there's nothing peculiar about the equal protection nature of the claim that she's bringing that you invoke to support your position that she's not a person.

Mr. Kneedler: No.

Unknown Speaker: The reason I ask the question, I mean, under the Fourteenth Amendment it refers to the... to persons within the jurisdiction, so I suppose you would be making the argument, if this were somehow a claim against a State, that she would not, as an alien living abroad, be such a person for that peculiar reason, and that's not your argument.

Mr. Kneedler: Or in another State under--

Unknown Speaker: Yes.

Yes.

Yes.

Mr. Kneedler: --Under the Fourteenth Amendment.

But we believe that aspect... and, again, it's an inherent aspect of the sovereignty of the United States.

The Constitution is a compact among the people of the United States, and Congress is the political branch responsible for determining who can be admitted and assume the rights and responsibilities of being a member of that society, so we think that this is a proposition that inheres in the nature of sovereignty, and is not trumped by the Fifth Amendment, particularly with respect to an alien abroad.

Unknown Speaker: Can I ask you a question on the merits?

Mr. Kneedler: Yes.

Unknown Speaker: I've two questions, actually, on the merits, and what I'm thinking of is not the problem of proving paternity.

I'm assuming that out with genetic testing.

Perhaps it's the same.

Assume that's so.

You have a separate argument that I think Justice Souter addressed earlier, and it's on pages 25, 26, 27, 28 of your brief, and basically you're arguing, I think, that there is more likely to... you want a substantial tie with the parent.

Mr. Kneedler: That's correct.

Unknown Speaker: A substantial tie, or something like that, a personal tie, and that's more likely to be there in the mind run of cases with the mother than it is with the father, and that's why we need the extra proof.

Mr. Kneedler: Well--

Unknown Speaker: That's the argument I'm thinking of.

Mr. Kneedler: --Right.

Unknown Speaker: Basically.

And I thought at first that's a pretty good argument, and then I realized that the reason I'm thinking that is in my mind I'm dividing parents into caretaker parents and noncaretaker parents, and that argument makes a lot of sense if you compare the noncaretaker citizen father with the caretaker citizen mother.

Of course it's true then.

It's true by definition.

5 minutes before the patient died he was still alive.

But suppose you switch to what I'd think would be the relevant comparisons.

Those are my two questions.

First let's think of the noncaretaker parents who are both citizens.

They're in the United States, the baby's over in the Philippines, and my first question is, why is there any reason in the world to believe that a noncaretaker father has less of a personal tie than a noncaretaker mother who's abandoned the child?

And now my second question looks at it just the other way.

Let's imagine now that both citizens are caretakers, and what reason in the world is there to think that a caretaker mother has more of a connection with the child than a caretaker father, who after all is trying to bring up the child by himself?

Now, those seem to me to be the two relevant comparisons, and as soon as I think of those comparisons, it seems to me this distinction is irrational, or close to it.

Mr. Kneedler: With all respect, we think it is quite soundly rational, and if I may just preface my response--

Unknown Speaker: Well, I'm trying to get you to respond.

[Laughter]

Mr. Kneedler: --With a... preface it with an important point that I think sometimes gets overlooked in this.

The point is not simply what tends to be true factually.

What... the steps that a father can take, are formal, recorded steps that are parallel to what happens when a child is born in the hospital.

Where there's a birth certificate, you have a witnessed birth, there will normally be no question whatsoever as to who the mother is, and by virtue of that you have an established legal relationship from the moment of birth.

Not... we're not getting to the question of caretaker or anything.

You have an established legal relationship from the moment of birth that follows the profound experience of carrying and bearing the child.

At that point, it is reasonable to assume that a parent, mother or father, but in this case it is only the mother, because the child was born out of wedlock, who has the legal relationship, will follow through with the caretaking relationship, with the love and responsibilities that come in the case of only one parent, and that is the situation that is addressed by 309(c).

There may be other--

Unknown Speaker: Mr. Kneedler, I understand that very well with respect to your first criterion, where you say you can't claim father status unless you show by clear and convincing evidence that you are the father.

But for the rest, for the life of me... if you're going to say, yes, only the woman can bear the child, there's no doubt that men will never be able to have that great joy, but--

[Laughter]

--just as only women can bear children, so both parents can care for children, and increasingly fathers are beginning to recognize the joy and the obligation of parenthood.

So your division for purpose of, am I a parent, I understand that, but after the birth, and after the paternity is established, the rest of it, just as in Justice Breyer's case, I have great difficulty following.

Mr. Kneedler: --The question, Justice Ginsburg, is not am I a parent, but am I a parent in contemplation of law, and citizenship is a formal relationship between the United States and a person.

It is a permanent relationship, and Congress is entitled to insist on an element of formality and legal acknowledgement in doing that.

The question is not whether Mr. Miller had an established personal relationship with petitioner during her minority, although there's no--

Unknown Speaker: Accepting that standard as a legal standard, clear and convincing evidence is lawyer talk.

Clear and convincing evidence that he's the father, that's a legal standard, and that relates to birth, who is the parent of this newborn child.

After that this talks about written obligation, written undertaking to support, all that, and why is that only one way, and I would like to ask in that connection whether the Government is now retreating from something it told the Court just 2 years ago over and over again, I think to the annoyance of some people because it was repeated so often at the oral argument and in the brief.

The Government said in the University of Virginia, United States v. Virginia said, differences in treatment based on sex are suspect.

Even when stereotypes reflect current realities, courts have condemned them because the law must not restrict men and women by reflecting and reinforcing patterns of historic discrimination.

The Government said that over and over.

Mr. Kneedler: --We have certainly not retreated from that.

You've asked me several questions, if I could just take a moment and respond to them.

First of all, in the... as this Court's decision in Fiallo made clear, Congress' power over immigration and naturalization is quite different from something that would happen in the domestic context, and there are a variety of reasons why that's so.

One of the parties to the transaction is an alien abroad, not even protected by the Constitution at all.

There are questions of sovereign authority, of foreign relations, of Congress taking into account conditions abroad.

That's both fact-finding and meshing U.S. law with foreign law.

So the circumstances we think are very different.

There's another big difference in the way that just what's at stake in this case and in the VMI case.

There, the Court was dealing with a categorical exclusion of women from the institution, and the Court was concerned with closing the door and denying opportunities to men and women, as the Court put it.

Here, there is no denial... no categorical exclusion, no denial of opportunities.

All Mr. Miller had to do, if he had the sort of relationship that you were describing, is to take the simple step of making that relationship formal and legal during the child's minority.

Unknown Speaker: May I ask you if you would answer the question that was asked before in the context of not national origin, but race.

Suppose the United States took the position, we know as a matter of statistics that there are many more white fathers that take responsibility for their children than nonwhite fathers.

Therefore, we're going to have this written acknowledgement of an obligation to support.

That will be required of citizen fathers who are nonwhite, but not citizen fathers who are white, and we're basing that on solid, empirical evidence of who provides support for children.

Would that be constitutional because it's in the immigration and nationality area?

Mr. Kneedler: Needless to say, this case doesn't go that far, but the question under Fiallo, the standard, is whether the justification advanced is one that is facially legitimate and bona fide, and in this country's history of race relations it would be difficult to imagine what a proper justification would be under parallel, I suppose, to those sorts of things that might be proffered for compelling justification, but here--

Mr. Kneedler: --No, I'm saying in terms of what sort of justifications one could imagine, and I... this country--

Unknown Speaker: --The justification is the practical one that I gave you, the statistics will show that disproportionately nonwhite fathers don't accept the support obligation.

Mr. Kneedler: --Well, in... again, given this country's history of race relations, and if there was a U.S. citizen claiming an effect on his ability to transmit because of that, it may be that under the phrase, facially legitimate, this Court would conclude that that is not a legitimate justification.

But there's a very different... if I may just go... explain what's different about this case, this... I think it is clear that at the moment of birth there is a categorical difference between the mother and the father of the U.S. citizen and the mother because, as I described earlier, in the child born out of wedlock, the mother has a legal relationship with the child from the moment of birth.

The father does not, unless the father or someone else takes a step in law to establish that relationship.

It isn't just the question of clear and convincing evidence of proof 20 or 30 years later as to whether in fact the man was the father.

The question is, was that legal relationship established during the child's minority, because the legal relationship is not just important in its own right.

It is emblematic and often fostering of a deeper personal relationship.

Unknown Speaker: Let's go to the emblematic issue, because that's part of your argument with the converse argument with respect to the more lenient treatment of the child of the citizen mother.

One step in that argument, as I understand it, is that because the mother is the citizen, the child will be with the mother, the mother has an attachment to the United States, therefore ultimately that will foster an attachment of the child to the United States.

My question is, should we take that argument seriously when in fact the statute requires of the citizen's mother that she have an attachment only to the extent of once at any time having lived for 1 year prior to birth in the United States?

That doesn't seem to me to be a criterion that calls for very much sense of attachment and if, in fact, that's the low value that the United States is willing to put on this attachment concept, isn't the argument a very weak argument, if not perhaps a sham?

Mr. Kneedler: No.

No.

With all respect, I think that very situation shows why Congress has particularly broad deference in this area, because what... Congress has to judge not only the situation in the United States and the U.S. citizen who may have a stake in it, but what is the situation abroad in the foreign country where, after all, the child was born?

And as we explain in our brief, Congress was very concerned, and the legislative history makes this quite clear, that a child born to a U.S. citizen on foreign soil, and this remains true in the Philippines, that child does not have citizenship of the country where she is born, so there's a very real problem of statelessness.

So what Congress is weighing there is perhaps a weaker tie to the United States, but perhaps no legal status at all in the country of birth, and so what Congress did there is to say, in that situation, because we are concerned for the child and for the mother of the child, who is a U.S. citizen, we are prepared to accept a somewhat weaker link to the United States in that situation because of the counterbalance.

Unknown Speaker: Is that on record somewhere?

Mr. Kneedler: Pardon me?

Unknown Speaker: I mean, can I find that reasoning somewhere in the legislative history?

Mr. Kneedler: Yes.

It's... we quote it in the... in the 1952 report in our brief, and there is discussion--

Unknown Speaker: Do you have the cite?

I didn't remember it.

Mr. Kneedler: --I'm sorry.

Unknown Speaker: No, if you don't have it right at hand, I don't want to take your time looking for it.

Mr. Kneedler: On page 34 of our brief.

Unknown Speaker: Okay.

Thank you.

Mr. Kneedler: We cite the Senate report.

Unknown Speaker: By the same token, if this child had in fact lived with her father, suppose he went... took him... took a ship, took her back to the United States, she's a teenager, she proves to be trouble, so he says, out with you, back, I don't want anything to do with you.

She would have had all her growing up years in the United States and yet, under this statute, she could not qualify as the child of a U.S. born citizen.

Mr. Kneedler: All the father had to do during her minority was to take the step of either legitimating the child--

Unknown Speaker: I'm just asking the question about the tie to the United States, so that becomes irrelevant.

Even though this child grew up in the United States, that's--

Mr. Kneedler: --It's conceivable there could be an as-applied challenge to this statute, but in the immigration area in particular Congress is entitled to legislate by categories, and Congress is entitled--

Unknown Speaker: --In social and economic legislation, too.

See, that's really the problem that I have with it.

It used to be for years and years social and economic legislation is anything goes, what Congress wants to do, and yet all the precedent in the gender cases were made in that area which traditionally has been a largely judicial hands-off, so I'm frankly puzzled about why the Government, after saying all gender classifications are subject to heightened scrutiny, now says we found an exception, so I'd like to know, are there other exceptions?

Mr. Kneedler: --No.

The exception and whether there might be another one I can't address.

What we have here is a very different context.

At the time the Court decided Fiallo this Court has already decided Craig v. Boren and concluded that gender distinctions in the domestic context have to be justified as having a substantial relation to an important governmental interest, and also applied heightened scrutiny with respect to illegitimacy.

But right contemporaneously with that... and this case is really about children born out of wedlock, and as in this Court's decision in Lehrer v. Robertson, where the Court said the statutory scheme is not likely to omit many responsible parents, we think that is exactly true here.

Anyone who wanted to establish the requisite relationship during the child's minority, and that's the period that Congress was focusing on, all that person had to do prior to 1986 was to provide for legitimation of the child.

Congress in 1986 liberalized that, not requiring a formal court to create it, not requiring the father to go to another country.

All he had to do was file a statement with the State Department acknowledging the paternity of the child and assuming an obligation equivalent to that of the mother that flows from that, even in the absence of a legal relationship, the acknowledgment, the promise to support that would flow from the mother's preexisting legal relationship with the child.

And if I may, with respect to the suggestion of the irresponsible parent, or the parent who may abandon, I don't think Congress is required to establish a statutory scheme on the possibility that someone in the other category may not live up to the legal responsibilities that the law prescribes, but in any event, this statute applies equally as to both categories.

The mother who bears the child and either abandons or gives the child up a week later, that child is a citizen.

The same is true for a father who acknowledges or legitimates a child.

If that father does not subsequently remain responsible, that child remains a citizen.

The question is simply the timing of when the father steps forward to assume his responsibilities for the child abroad.

And one other point to bear in mind, in many cases... and this is not a generalization about the nature of men and women.

It's a statistical legal fact that in the cases of a child born out of wedlock, when you have a U.S. citizen mother, that will very often be the only parent.

Where you have a U.S. citizen father who takes the steps to legitimate and the other steps, that means there are two parents with a legal relationship, one parent here and one parent in the other country.

So this is a situation which, in fashioning these categorical schemes, Congress necessarily has to balance the different considerations that arise, and so it's not just the question of the U.S. citizen parent.